My sincere thanks to the New York County Lawyers for this award-and in particular to Scott Klugman for all he does every year to make this event so special.
When I became a district judge in 1987, Judge Weinfeld was still with us, and I vividly recall his warmly welcoming me at my first Circuit Judicial Conference and telling me that I could count on a wonderful professional life ahead. Well, Judge Weinfeld was right. l’he federal bench has given me a wonderful professional life for more than 36 years-filled with interesting challenges and many opportunities to administer justice–frequently in the company of smart, thoughtful colleagues. Over the years, I have seen you honor many of those colleagues with this special award named for Judge Weinfeld. And so, it is a great honor for me, today, that you include me in their number.
I am particularly pleased to have the award presented by my dear friend, Judge Carol Bagley Amon, herself a former-and most deserving– recipient of the Weinfeld Award. No one knows better than I just how deserving because I got to make the presentation for her receipt of the award. So, “grace pour grace.” Or, as we might say in Brooklyn, “What goes around, comes around.”
My particular thanks to Senator Alfonse D’ Amato for being here today. More than anyone, he is responsible for my judicial career—having urged President Ronald Reagan to nominate me to the district court at a time when a few folks still questioned the appointment of women to the bench. Thank you, Senator, for your confidence then, and for your support always. Now-you did ask for one promise: that I make you proud of the nomination. I hope you consider that promise kept.
Also here are many of the wonderful men and women who, day in and year out, have worked pard to help me administer justice: my law clerks. Also my current judicial assistant, Lori McCarthy; and my last, great district courtroom deputy, Eileen Levine. It is no exaggeration to say: “I couldn’t have done it without you.”
Finally, my thanks to three special men. First, to my late husband, David Denton, whom many of you knew as an outstanding lawyer. For me, David was also an indefatigable supporter. Whatever challenges I faced in my fifteen years on the district court-mob threats, a possible capital verdict, my name in the tabloid press—David was there with wisdom, encouragement, and-most important—humor .
More recently, I have had the unswerving support of my husband, Roy Meiliman. Roy also is a terrific lawyer, but his world is tax. Before we met, he had almost no experience with courtrooms. But he’s proved a quick study, and great cheerleader.
Finally, my thanks to someone who has supported me my entire judicial career–which just so happens to coincide with most of his entire life: my son, David Denton, Jr. Judge Amon mentioned David’s exceptional national security work across five continents. He’s been very busy the last two weeks. I’m very proud of David, and not at all hesitant to say that he’s one of my contributions to the administration of justice.
Well, I know that in order to take the Weinfeld award home, I do have to say a few words about the administration of justice. I like to think that the primary way I’ve contributed to the administration of justice is through my casework on two great courts, the Second Circuit and the Eastern District ofNew York. Judge Amon has said some kind words about that work.
But, as she also reported, I’ve served on a few committees of the United States Judicial Conference. Some folks might say that my principal contribution to the administration of justice on these committees has been to say “No”:
—“No” to tinkering with the Rules of Criminal Procedure.
—“No” to cuts in judicial resources.
—“No” to still-more surveys, studies, formulas to tell judges how to do their jobs.
Well-for the record-I haven’t always been negative. But I have proceeded with caution . .And there’s a reason why: judicial independence. You see, I’ve come to realize that challenges to judicial independence can come not only from Congress, or the executive branch,· or the academy-but also from within the judiciary itself, by the increasing bureaucratization of its operations.
I mention this today because I think we are in a time of transition, with many new judges and younger lawyers assuming leadership roles on the bench and in the bar. Soon, you will be serving on conference committees or providing the bar’s comments on their proposals. So, I sound a quiet warning. Growing the judicial bureaucracy can be tempting. But there’s a price.
Bureaucracy-by its nature—inclines toward standardization and centralization, and that can constrain the flexibility that judicial independence affords individual judges to administer justice for specific persons in particular circumstances. It is that flexibility that frequently ensures the law’s humanity. And so, to the extent bureaucracy can sometimes be the enemy of the humane, I urge caution.
You see, I was privileged early in my career to know great judges who embodied judicial independence: judges like Edward Weinfeld and, particularly for me in the Eastern District, Jack Weinstein, Jack Mishler, Eugene Nickerson, just to name a few. They understood that judicial independence did not pertain only to “the judiciary” as an institution. Rather, it belongs to each Article III judge. Watching these men, I came to identify the model for the humane administration of justice as a judge, sitting in a courtroom, interacting directly with litigants, their lawyers, witnesses, victims.
To be sure, the judge is controlled by law and precedent. Still—subject to that law and to appellate review, a judge best serves justice when he-or she— can do the work with minimal bureaucratic constraints. Now-a bureaucrat might ask-but is that the most efficient way to operate? I don’t know. But, it is the way that best ensures the law’s humanity.
And so, when, as a conference committee member, I have been presented with proposals, whether for new rules or resource allocations, the question I have most frequently asked has been: “Does this help a judge on the bench hear and decide a case? If it does, I’m for it. If not-well, maybe we don’t need to go there. Or, even if we do, maybe we don’t need to go there at too removed a bureaucratic distance from that judge.
What do I mean by that? Well, I suggest that the more removed a bureaucracy is from a judge in a courtroom, the greater the risk to judicial independence. So—when individual judges, operating as a Board for their particular court agree on common rules or operating protocols, there may be little reason to fear for judicial independence precisely because (1) each affected judge has a voice in the decision, and (2) at that direct level, in my experience, judges are most inclined to preserve some flexibility for one another.
Move a step away, to Circuit Councils, and the risk to judicial independence may grow, but not significantly because, again, in my experience, judges on the Second Circuit’s Council respect and regularly defer to the superior insights of individual court’s Chief Judges or Boards of Judges.
But increase the distance—so as to reach the Potomac-as in the case of national committees and bureaucracies—bureaucracies like the Administrative Office ofU.S. Courts, the Federal Judicial Center, and the U.S. Sentencing Commission-the risk to judicial independence grows and, thus, the need for greater caution.
Now I am not suggesting that these judiciary support bureaucracies consciously strive to constrain judicial independence. To the contrary, the well intentioned folks who comprise these bureaucracies think of themselves as serving the judiciary. After all—they’re from Washington; they’re here to help. But, seriously, because they operate at such a distance from real judges in actual courtrooms, they necessarily lack familiarity with the day-to-day work of administering justice— in all its unpredictable variety. They tend to think of “the judiciary” as a singular entity, whose work they can quantify, generalize, and ultimately, standardize.
And so, they spend a lot of time collecting data-lots and lots of data-about various aspects of court work. They then devise formulas to apply to that data—which frequently yield results that convince them of all sorts of deficiencies and inefficiencies in judges’ work. Perhaps inevitably, then, they come to see judges not as individuals to be supported and helped in their work. Rather, they view them collectively as “the problem” that needs to be addressed through bureaucratic constraints.
With all due respect, this is the mindset that got us mandatory Sentencing Guidelines, or at least the Sentencing Commission’s early resistance to any flexibility in their application. Well, as eventually became clear, that cure was worse than the disease.
Well, as with Guidelines mandates, so with other aspects of the administration of justice:
—one size rarely fits all;
—not all things can easily be quantified;
—averages sometimes mislead; and, in the end,
—there is no substitute for judicial experience and discretion m the humane administration of justice.
Of course—-1 recognize that sometimes nationwide rules of procedure, nationwide standards for distributing resources, and other standardized judiciary practices, can be valuable. But I emphasize the need for caution in evaluating the data presented to support ever more rules and standards. I was going to give you some examples of recent instances where the statistical data advanced to support certain bureaucratic proposals affecting how judges do their work did not bear close scrutiny. But, in the end, I sensibly decided that would not only take too long; it would be much too painful. My point is simply that such scrutiny is essential before adopting bureaucratic proposals because, as a Nobel Laureate in economics once observed, “if you torture the data long enough, it will confess to anything.” So–careful review.
And-before presuming that nationwide solutions will be better than local ones, remember how frequently judicial challenges have been solved at the local, rather than the national, level. Most recently, we’ve seen this in how individual judges in this circuit-particularly district judges-responded to the COVID pandemic. In the first, terrible twelve months, these judges received very little help from national bureaucracies. Still, with determination, imagination-and independence, individuals judges found ways to protect juries and litigants, to stretch budgets, and to secure equipment, so that trials could resume. They were inspiring.
There’s an important lesson for all of us in their example and in that of our many predecessors who embodied judicial independence.
—Jack Mishler and Gene Nickerson did not need a formula to measure the efficiency of their courtroom use to be among this circuit’s greatest trial judges.
—Jack Weinstein did not need a work measurement formula to know how to marshal court resources to handle complex mass tort litigations—or the entirety of the Eastern District’s habeas backlog.
—And we need review no caseload averages to know that when Edward Weinfeld entered the Foley Square courthouse at 6:00 a.m. every morning, right into his 86th year, there was no one more committed administering justice fairly and humanely for each and every person in each and every case that came before him.
The same holds true for their present judicial successors.
Thank you for letting me share these thoughts. Thank you for supporting judicial independence. And thank you very much indeed for this splendid award.